Guardianship and Capacity (AU) glossary
Guardianship and capacity law in Australia is state and territory-based, with each jurisdiction having its own Guardianship Act, tribunal, and mechanisms for substitute and supported decision-making. This area intersects with estate planning, disability rights, aged care, and mental health law. This glossary explains the terms practitioners need.
This glossary covers 40 terms that elder law, estate, and disability lawyers encounter when advising on guardianship and capacity matters in Australia. Each definition references the relevant state legislation or tribunal guidance.
Definitions
Advance care directive
A document in which a person with capacity sets out their wishes for future health care and end-of-life treatment — legally binding in most jurisdictions.
Advance health directive
A statutory document in Queensland giving directions about future health care if the person loses capacity — distinct from a general power of attorney.
Appointee (Centrelink)
A person appointed by Services Australia to act on behalf of a person who cannot manage their own Centrelink payments — separate from a state guardianship or financial management order.
Attorney
The person appointed under a power of attorney to act on the principal's behalf — owing fiduciary duties to act honestly and in the principal's best interests.
Best interests
The principle guiding substitute decision-makers — requiring them to consider the person's wishes, welfare, and least restrictive options.
Capacity
The ability to understand the nature and effect of a decision, freely and voluntarily make the decision, and communicate it — the threshold for making legal, medical, and financial decisions.
Capacity assessment
A clinical or legal assessment of a person's decision-making ability — conducted by a medical practitioner, psychologist, or specialist assessor.
Community treatment order
A mental health order requiring a person to accept treatment in the community — made by a tribunal when the person lacks capacity to consent to treatment.
Consent to medical treatment
The requirement for informed consent before medical treatment — where a person lacks capacity, consent must come from a substitute decision-maker in the prescribed hierarchy.
Enduring guardian
A person appointed under an enduring guardianship instrument to make lifestyle and health decisions if the appointor loses capacity — distinct from a power of attorney for finances.
Enduring power of attorney
A power of attorney that continues (or commences) after the principal loses capacity — covering financial and property decisions.
Financial management order
A tribunal order appointing a financial manager to manage the financial affairs of a person who lacks capacity to do so themselves.
Financial manager
A person or body appointed by the tribunal to manage the finances of a person under a financial management order — with duties to act in the person's best interests.
Guardian
A person appointed by a tribunal to make lifestyle, health, and accommodation decisions for a person who lacks capacity — with authority limited to the terms of the guardianship order.
Guardianship order
A tribunal order appointing a guardian for a person who lacks capacity — specifying the functions the guardian may exercise and the duration of the order.
Incapacity
The inability of a person to make a decision due to disability, illness, or impairment — the prerequisite for guardianship, financial management, or substitute decision-making.
Involuntary patient
A person detained in a mental health facility under a mental health order — subject to periodic review by the mental health review tribunal.
Least restrictive
The principle that any intervention in a person's decision-making should be the least restrictive of their freedom and rights — a guiding principle in all guardianship legislation.
Mental health review tribunal
The tribunal reviewing involuntary treatment orders and community treatment orders — ensuring the ongoing necessity and appropriateness of mental health detention.
NCAT
The NSW Civil and Administrative Tribunal — the Guardianship Division hears applications for guardianship orders, financial management orders, and reviews of enduring instruments.
NDIS
The National Disability Insurance Scheme — providing funding for disability supports, intersecting with guardianship where participants lack capacity to manage their plans.
NDIS plan nominee
A person appointed by the NDIA to manage an NDIS participant's plan where the participant is unable to do so — distinct from a guardian or financial manager.
NSW Trustee and Guardian
The NSW statutory body that acts as guardian, financial manager, or attorney of last resort — appointed when no suitable private person is available.
Person responsible
The person authorised under the Guardianship Act hierarchy to consent to medical treatment on behalf of a person who lacks capacity — typically the guardian, spouse, carer, or close relative.
Plenary guardian
A guardian with authority over all aspects of the person's lifestyle — appointed only when a limited guardianship is not appropriate.
Power of attorney
A legal instrument authorising one person (the attorney) to act on behalf of another (the principal) in financial and property matters.
Principal
The person who grants a power of attorney — retaining the right to revoke it while they have capacity.
Private guardian
A family member, friend, or other individual appointed as guardian — as opposed to the NSW Trustee and Guardian or a public guardian.
Public Guardian
The independent statutory officer who investigates complaints about guardians and attorneys, and acts as guardian of last resort in some jurisdictions.
Restrictive practices
Practices that restrict a person's rights or freedom of movement — regulated under guardianship and disability legislation, requiring authorisation and reporting.
Review of order
The periodic review of a guardianship or financial management order by the tribunal — ensuring the order remains necessary and appropriate.
Revocation
The cancellation of a power of attorney or enduring guardianship by the principal while they have capacity — must be in the prescribed form.
Special medical treatment
Specified medical procedures that require tribunal consent even when a person responsible would otherwise be able to consent — including sterilisation and experimental treatment.
Substitute decision-maker
Any person authorised by law to make decisions on behalf of a person who lacks capacity — including guardians, financial managers, and attorneys.
Supported decision-making
An approach that supports people with disability to make their own decisions with assistance — preferred over substitute decision-making where possible.
Testamentary capacity
The ability to understand the nature and effect of making a will — assessed at the time the will is executed, distinct from general capacity.
Undue influence
Improper pressure or manipulation by a person in a position of power or trust — rendering a power of attorney, will, or other instrument voidable.
VCAT Guardianship List
The list within the Victorian Civil and Administrative Tribunal that hears guardianship and administration applications.
Voluntary patient
A person receiving mental health treatment voluntarily — retaining the right to leave and refuse treatment, in contrast to an involuntary patient.
Will
A legal document directing the distribution of a person's estate after death — requiring testamentary capacity at the time of execution.
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These definitions are general explanations for educational purposes — not legal advice. Guardianship and capacity law varies significantly between states and territories. Always verify against the current legislation and tribunal practice notes in the relevant jurisdiction.
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